Justice Stephen Breyer’s Legacy of Pragmatism and a Changed Supreme Court

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First appointed to the Supreme Court in 1994 by President Bill Clinton, Supreme Court Justice Stephen Breyer recently announced that he will step down at the close of the current term after nearly 30 years of service. Throughout his tenure, Justice Breyer has been a steadfast presence known for his professorial approach to questioning from the bench and offering nuanced perspectives on gun safety, abortion, the death penalty, and more in written decisions. 

Justice Breyer on Religious Freedom

Justice Breyer often grappled with the meaning of freedom of belief in a pluralistic nation, at times reaching conclusions that differed from the positions of Interfaith Alliance and other champions of true religious freedom. But his approach has been a pragmatic one, noting that “the relation between government and religion is one of separation, but not of mutual hostility and suspicion,” where “borderline cases” will arise and decision-makers must take into account our diversity of religion and belief.

For instance, as recently as 2019, Justice Breyer joined his conservative colleagues in permitting a towering cross to remain on public land in Bladensburg, MD. “The Court appropriately ‘looks to history for guidance,’ but it upholds the constitutionality of the Peace Cross only after considering its particular historical context and its long-held place in the community,” he noted, taking into account the unique circumstances of the monument erected in 1925, adding, “A newer memorial, erected under different circumstances, would not necessarily be permissible under this approach.”

Such questions presented themselves again as states began adopting limitations on public gatherings amid the COVID-19 pandemic, with a number of challenges by faith-based entities soon reaching the court. Justice Breyer noted that the right to free exercise – to gather for worship, study, and other expressions of religious devotion – does not exist in a vacuum. He cautioned the majority against taking an absolutist approach to religious freedom without considering the evolving expertise of the medical and scientific communities, emphasizing that “the nature of the epidemic, the spikes, the uncertainties, and the need for quick action, taken together, mean that the State has counter­vailing arguments based upon health, safety, and administrative consider­ations that must be balanced against the applicants’ First Amendment chal­lenges.”

This inclination toward nuance and consensus proved a tremendous asset to the judiciary throughout Justice Breyer’s tenure. And as the court has shifted rightward in recent years, Justice Breyer consistently emphasized his view that it remains an essential and nonpartisan institution. This summer, however, he will step down from an increasingly polarized body.

Justice Breyer’s Successor Must Champion Religious Freedom for All

The current makeup of the court has brought our country to a turning point. In a deeply polarized political environment, fundamental principles of civil rights, civil liberties, and preserving the separation of church and state are at stake. Our democracy is strengthened when those in positions of authority reflect the people they serve, from our school boards to our highest court. 

Supreme Court justices serve for a lifetime, making these nominations among the most important decisions a president will face. Interfaith Alliance fights to ensure that each prospective justice undergoes a thorough and timely vetting process and, if confirmed, will respect the inherent rights of all Americans. We urge President Biden to nominate a champion for true religious freedom, a jurist who brings an inclusive and dynamic perspective, to succeed Justice Breyer.

Learn more about Interfaith Alliance’s efforts to protect true religious freedom.